JULY 13, 1923, 3 COMP. GEN. 13

JULY 13, 1923, 3 COMP. GEN. 13

FEES OF UNITED STATES COMMISSIONERS - WARRANTS FOR PERSONS ALREADY IN CUSTODY THE ISSUANCE OF WARRANTS OF ARREST BY A UNITED STATES COMMISSIONER IN THE STATE OF TEXAS FOR DEFENDANTS ALREADY IN CUSTODY FOR THE OFFENSE CHARGED IS UNNECESSARY AND FEES CHARGED FOR MAKING COPY OF COMPLAINTS, ISSUING WARRANTS AND ENTERING RETURN ON WARRANTS IN SUCH CASES ARE NOT ALLOWABLE.

ACTING COMPTROLLER GENERAL GINN TO THE ATTORNEY GENERAL, JULY 13, 1923:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 19, 1923, INCLOSING COPY OF A RECENT SPECIAL REPORT OF EXAMINER SIGNAIGO UPON THE OFFICE OF UNITED STATES COMMISSIONER A. J. W. SCHMID, EL PASO, TEX., COVERING THE PERIOD OCTOBER 1, 1921, TO MARCH 31, 1923, AND REQUESTING THAT THE ACCOUNTS BE REOPENED AND THAT CERTAIN ITEMS LISTED FOR DISALLOWANCE, HERETOFORE ALLOWED, BE RECHARGED TO THE COMMISSIONER IF THE FACTS WARRANT SUCH ACTION.

THE ACCOUNTS FOR THE DECEMBER, 1921, AND MARCH, 1922, QUARTERS HAVING BEEN SETTLED MORE THAN A YEAR FROM THE DATE OF YOUR APPEAL WILL BE ACTED UPON IN THE AUDIT IN ACCORDANCE WITH THE PRINCIPLES HEREIN ANNOUNCED.

THE ACCOUNTS FOR JUNE, SEPTEMBER, AND DECEMBER QUARTERS, 1922, WILL BE CONSIDERED ON THIS REVIEW.

THE CHARGES ARE AS FOLLOWS:

TABLE

JUNE QUARTER, 1922.--- SETTLEMENT NO. 36089. REVIEW NO. 4758. ITEM 1. CHARGE FOR MAKING COPY OF COMPLAINT, ISSUING WARRANT OF ARREST, AND ENTERING RETURN ON WARRANTS, 115 CASES, AT $1.20 IN IN EACH CASE --------- -------------------------------------- $138.00

SEPTEMBER QUARTER, 1922.--- SETTLEMENT NO. 36745. REVIEW NO. 4759. ITEM 2. CHARGE FOR MAKING COPY OF COMPLAINT, ISSUING WARRANT OF ARREST, AND ENTERING RETURN ON WARRANTS, 200 CASES, AT $1.20 IN EACH CASE ------------ ----------------------------- $240.00

DECEMBER QUARTER, 1922.--- SETTLEMENT NO. 37321. REVIEW NO. 4760. ITEM 3. CHARGE FOR MAKING COPY OF COMPLAINT, ISSUING WARRANT OF ARREST, AND ENTERING RETURN ON WARRANTS, 220 CASES, AT $1.20 EACH ----- -------------- ----------------------------- $264.00

SUMMARY OF THE ITEMS. TOTAL FOR JUNE QUARTER, 1922 ----------- --------- ---------- $138.00 TOTAL FOR SEPTEMBER QUARTER, 1922 -------- ------------ ----- 240.00 TOTAL FOR DECEMBER QUARTER, 1922 ----------- --------------- 264.00

TOTAL OF ITEMS --------------------------------------- 642.00

THE ITEMS ARE RECOMMENDED FOR DISALLOWANCE FOR THE REASON, AS STATED BY THE EXAMINER, THAT IT HAS BEEN THE PRACTICE OF COMMISSIONER SCHMID TO ISSUE WARRANTS OF ARREST AFTER DEFENDANTS HAD BEEN PREVIOUSLY ARRESTED BY EITHER ONE OR THE OTHER OF THE CUSTOMS, IMMIGRATION, NARCOTIC, PROHIBITION, OR POLICE OFFICERS, AND IN CUSTODY AT THE TIME THE COMPLAINT WAS FILED AND WARRANT ISSUED. IT APPEARS TO BE THE PRACTICE OF THE OFFICERS MAKING ARRESTS TO PLACE THE DEFENDANTS IN JAIL, INSTEAD OF TAKING THEM DIRECTLY BEFORE THE COMMISSIONER FOR A HEARING. BY TAKING THE DEFENDANTS DIRECTLY BEFORE THE COMMISSIONER UPON ARREST, OR THE NEXT MORNING, AFTER HAVING LODGED THEM IN JAIL FOR THE NIGHT FOR SAFE-KEEPING, THERE WOULD NOT HAVE BEEN ANY NECESSITY FOR THE ISSUANCE OF THE WARRANT, AS THE STATE OF TEXAS AUTHORIZES THE ARRESTS OF OFFENDERS WITHOUT A WARRANT WHEN THE OFFENSE IS COMMITTED IN THE PRESENCE OF A PEACE OFFICER, OR WITHIN HIS VIEW, IF THE OFFENSE IS ONE CLASSED AS A FELONY, OR AS AN OFFENSE AGAINST THE PUBLIC PEACE.

THE TEXAS LAW IN RELATION TO ARRESTS, AS TAKEN FROM VERNON'S TEXAS CRIMINAL PROCEDURE, PROVIDES AS FOLLOWS:

ART. 259. ARREST WITHOUT WARRANT, WHEN. A PEACE OFFICER OR ANY OTHER PERSON MAY, WITHOUT WARRANT, ARREST AN OFFENDER WHEN THE OFFENSE IS COMMITTED IN HIS PRESENCE OR WITHIN HIS VIEW, IF THE OFFENSE IS ONE CLASSED AS A FELONY, OR AS AN OFFENSE AGAINST THE PUBLIC PEACE.

ART. 260. A PEACE OFFICER MAY ARREST, WITHOUT WARRANT, WHEN A FELONY OR BREACH OF THE PEACE HAS BEEN COMMITTED IN THE PRESENCE OR WITHIN THE VIEW OF A MAGISTRATE; AND SUCH MAGISTRATE SHALL VERBALLY ORDER THE ARREST OF THE OFFENDER.

ART. 261. THE MUNICIPAL AUTHORITIES OF TOWNS AND CITIES MAY ESTABLISH RULES AUTHORIZING THE ARREST, WITHOUT WARRANT, OF PERSONS FOUND IN SUSPICIOUS PLACES, AND UNDER CIRCUMSTANCES WHICH REASONABLY SHOW THAT SUCH PERSONS HAVE BEEN GUILTY OF SOME FELONY OR BREACH OF THE PEACE, OR THREATEN, OR ARE ABOUT TO COMMIT SOME OFFENSE AGAINST THE LAWS.

ART. 262. WHERE IT IS SHOWN BY SATISFACTORY PROOF TO A PEACE OFFICER, UPON THE REPRESENTATION OF A CREDIBLE PERSON, THAT A FELONY HAS BEEN COMMITTED, AND THAT THE OFFENDER IS ABOUT TO ESCAPE, SO THAT THERE IS NO TIME TO PROCURE A WARRANT, SUCH PEACE OFFICER MAY, WITHOUT WARRANT, PURSUE AND ARREST THE PERSON ACCUSED.

ART. 263. IN ALL THE CASES ENUMERATED WHERE ARRESTS MAY BE MADE LAWFULLY WITHOUT WARRANT, THE OFFICER OR OTHER PERSON MAKING THE ARREST IS JUSTIFIED IN ADOPTING ALL THE MEASURES WHICH HE MIGHT ADOPT IN CASES OF ARREST UNDER WARRANT, AS PROVIDED IN THIS CODE.

ART. 264. IN ALL THE CASES ENUMERATED IN THIS CHAPTER, THE PERSON MAKING THE ARREST SHALL IMMEDIATELY TAKE THE PERSON ARRESTED BEFORE THE MAGISTRATE WHO MAY HAVE ORDERED THE ARREST, OR BEFORE THE NEAREST MAGISTRATE WHERE THE ARREST WAS MADE WITHOUT AN ORDER.

UNDER SECTION 1014, REVISED STATUTES, UNITED STATES, WHICH PROVIDES FOR THE ARREST OF CERTAIN OFFENDERS, IT IS A WELL-SETTLED RULE THAT COMMISSIONERS MUST CONFORM TO THE PRACTICE PRESCRIBED BY THE STATUTES OF THE STATE WHEREIN THE ARREST IS MADE, WITHOUT REGARD TO THE FEES TO BE EARNED BY THEM. SEE 5 COMP. DEC., 172; 10 ID., 340; PARAGRAPH 1053 OF THE CURRENT INSTRUCTIONS TO COMMISSIONERS, ETC.

IT IS FURTHER STATED BY THE EXAMINER THAT FORM NO. 194, MARSHAL'S FEES AND EXPENSES IN SERVING CRIMINAL PROCESS, DID NOT CARRY EXPLICIT INFORMATION AS TO HOW AND WHERE EXECUTED; ON ACCOUNT OF WHICH THESE EXHIBITS SHOW THE NAME OF THE DEPUTY MARSHAL WHO EXECUTED EACH WARRANT; THAT AFTER THE STATEMENTS WERE MADE UP IN THE ROUGH, THEY WERE SUBMITTED TO EACH DEPUTY MARSHAL TO BE VERIFIED, AND WHERE ANY DOUBT APPEARED THE CASE WAS STRICKEN THEREFROM, THESE EXHIBITS REPRESENT A CORRECT STATEMENT AND ARE MADE UPON THE TESTIMONY OF THE DEPUTY MARSHALS LOCATED AT EL PASO, EX., WHOSE NAMES APPEAR THEREON; THAT THE WARRANT TO APPREHEND WAS SERVED UPON THE OFFENDER WHILE HE WAS DETAINED IN CUSTODY.

IN A LETTER TO THE EXAMINER UNDER DATE OF APRIL 6, 1923, THE COMMISSIONER STATES THAT HE IS DISPOSED TO RENDER ALL ASSISTANCE HE COULD IN GETTING AT THE FACTS. HE CLAIMS TO HAVE ISSUED WARRANTS OF ARREST IN ALL CASES FILED BEFORE HIM, AND THAT IN MOST OF THOSE CASES THE DEFENDANTS HAD ALREADY BEEN LODGED IN THE CITY OR COUNTY JAIL; THAT WHEN COMPLAINTS WERE FILED HE USUALLY INQUIRED OF THE COMPLAINANT AS TO WHERE THE PRISONER COULD BE FOUND, AND THIS INFORMATION WAS CONVEYED BY HIM TO THE MARSHAL UPON PHYSICAL DELIVERY OF THE WARRANT TO HIM; THAT HE FOLLOWED A PRACTICE WHICH EXISTED IN THE STATE COURTS THERE AND, SO FAR AS HE WAS ABLE TO ASCERTAIN, IN ALL OTHER PLACES IN TEXAS; AND THAT HE DID NOT BELIEVE A BAIL BOND WAS VALID UNLESS TAKEN AFTER ISSUANCE AND SERVICE OF A VALID WARRANT; THAT SUBSEQUENTLY HE FOUND A BAIL BOND TO BE VALID, EVEN THOUGH THE WARRANT OR COMPLAINT BE DEFECTIVE, THIS BY VIRTUE OF THE DAVENPORT CASE. SEE 266 FED.REP., 425.

THE EXAMINER SUBMITTED THE ITEMS RECOMMENDED FOR DISALLOWANCE TO THE COMMISSIONER, AFTER HAVING SUBMITTED THE ITEMS TO THE VARIOUS DEPUTY MARSHALS WHO SERVED THE WARRANTS AND OBTAINED THEIR STATEMENTS AS TO WHERE THE ARRESTS WERE MADE UNDER THE WARRANT, WITH A REQUEST THAT HE VERIFY THE CORRECTNESS OF THE DEPUTY MARSHAL'S STATEMENT IN EACH INSTANCE. THIS HE CLAIMED HE WAS UNABLE TO DO BECAUSE OF THE VOLUME OF BUSINESS DONE AND THE GREAT NUMBER OF WARRANTS OF ARREST AND FURTHER BECAUSE HE DID NOT ALWAYS KNOW JUST WHERE THE ARREST WAS MADE. HIS UNWILLINGNESS TO CHECK OVER EACH WARRANT ISSUED, OR THOSE ON WHICH THE VARIOUS DEPUTY MARSHALS HAVE COMMENTED AND INDICATED WHERE ARREST WAS MADE, AND TO CONFIRM OR DENY THE ACCURACY OF THE MARSHAL'S STATEMENT IS BASED ON A LACK OF RECORD, AND TO STATE THE FACTS AS REQUESTED WOULD BE TO STATE THEM FROM MEMORY.

UNDER THE LAWS OF TEXAS A COMPLETE PROCEDURE HAS BEEN PROMULGATED FOR THE ARREST WITHOUT WARRANT FOR CERTAIN CRIMES COMMITTED, OR THREATENED IN THE PRESENCE OF PEACE OFFICERS, DIRECTING THEM TO PURSUE AND ARREST DEFENDANTS AND TO TAKE THEM FORTHWITH BEFORE A COMMITTING OFFICER FOR A HEARING.

SECTION 1014 OF THE REVISED STATUTES PROVIDES IN PART AS FOLLOWS:

FOR ANY CRIME OR OFFENSE AGAINST THE UNITED STATES, THE OFFENDER MAY, * * * AND AGREEABLE TO THE USUAL MODE OF PROCESS AGAINST SUCH OFFENDERS IN SUCH STATES, AND AT THE EXPENSE OF THE UNITED STATES, BE ARRESTED, IMPRISONED, OR BAILED, AS THE CASE MAY BE, FOR TRIAL BEFORE SUCH COURT OF THE UNITED STATES AS BY LAW HAS COGNIZANCE OF THE OFFENSE.

THE PLAIN DUTY OF THE COMMISSIONER, UNDER THE LAW, WHEN COMPLAINANTS APPEARED BEFORE HIM TO SWEAR TO A COMPLAINT AGAINST A CERTAIN OFFENDER, WHO WAS ALREADY IN CUSTODY, AND THE COMMISSIONER SO INFORMED, WAS TO DIRECT THE OFFICER TO PRODUCE THE OFFENDER BEFORE HIM FOR A HEARING, INSTEAD OF ISSUING A WARRANT OF ARREST AND DELIVERING THE SAME TO THE MARSHAL FOR SERVICE. THE FURTHER REASON GIVEN THAT HE DID NOT BELIEVE A BAIL BOND WAS VALID UNLESS TAKEN AFTER ISSUANCE AND SERVICE OF A VALID WARRANT, WHICH HE SUBSEQUENTLY FOUND TO BE INCORRECT CAN NOT JUSTIFY HIS ACTIONS FOR ISSUING UNNECESSARY WARRANTS.

UPON A REVIEW OF THE SETTLEMENT A DIFFERENCE OF $642 IS CERTIFIED DUE THE UNITED STATES.

THIS CASE IS DISTINGUISHED FROM THE RECENT MASON AND HITT CASES, IN WHICH THE WHEREABOUTS OF THE DEFENDANTS WERE UNKNOWN TO THE COMMISSIONER AT THE TIME OF THE ISSUANCE OF WARRANTS OF ARREST.